Omni Care v Koumouris

[2015] VSC 603

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2015 1340

OMNI CARE PTY LTD	Plaintiff
v
KERRYN KOUMOURIS DANIEL LEWIS MATTHEW TAGKALIDIS ANDREW HARDIDGE MALCOLM SIM	First defendant Second defendant Third defendant Fourth defendant Fifth defendant

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JUDGE:	BELL J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 October 2015
DATE OF JUDGMENT:	29 October 2015
CASE MAY BE CITED AS:	Omni Care v Koumouris
MEDIUM NEUTRAL CITATION:	[2015] VSC 603

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JUDICIAL REVIEW – workers’ compensation – opinion of medical panel that worker’s major depressive disorder was due to work-related knee injury – whether jurisdictional error – whether error of law on face of the record – whether reasons for decision inadequate – worker’s husband directed hostility and abuse towards worker by reason of ceasing to work – whether chain of causation between worker’s major depressive disorder and knee injury broken by husband’s behaviour – whether panel’s reasons for decision disclosed path of reasoning – ‘novus actus interveniens’ – Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) div 3, pt 6.

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APPEARANCES:	Counsel	Solicitors
For the plaintiff	Mr M Fleming QC and Mr R Kumar	Thomson Geer Lawyers
For the first defendant	Mr P Jewell QC and Mr N Dunstan	LN Christie & Co

HIS HONOUR:

1. Omni Care Pty Ltd applies for judicial review of the opinion of the second to fifth defendants (constituted as a medical panel under div 3 of pt 6 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)) in respect of Kerryn Koumouris. Ms Koumouris was injured during the course of her employment with Omni Care and in receipt of weekly payments of compensation. Omni Care’s claims agent terminated those payments upon the ground that she was no longer entitled to them. Ms Koumouris disputed that decision and referred the matter to a conciliation officer. That resulted in certain questions being referred to the panel for its opinion. The panel’s opinion on that reference is the subject of this proceeding.

1. Following the reference, the panel gave opinions in relation to the questions pursuant to s 313 of the Act.  Here are the referred questions and the opinions given, as set out in its Certificate of Opinion:

Question 1.What is the nature of the worker’s medical condition (including any sequelae) relevant to the claimed injury?

Answer:In the opinion of the Panel the worker is suffering from mild continuing patellar dysfunction of the right knee, surgically treated, and a Major Depressive Disorder, attributable to the claimed injury.

Question 2.Does the worker have ‘no current work capacity’?

Answer:In the opinion of the Panel the worker has no current work capacity.

Question 3.If the worker has ‘no current work capacity’, is this situation ‘likely to continue indefinitely’?

Answer:Yes.

1. As can be seen, the panel’s opinion in respect of question 1 was that Ms Koumouris was suffering from a mild continuing knee injury and a major depressive disorder that was attributable to that injury.  The answers to questions 2 and 3 followed accordingly.  In essence, the panel’s opinion was that Ms Koumouris was not prevented from performing suitable work by reason of the right knee injury, which had been treated, but by her psychiatric condition.

1. Relying upon two grounds of jurisdictional error, Omni Care seeks judicial review.  The first is that the panel erred in law upon the face of the record in concluding that Ms Koumouris’s major depressive disorder was attributable to the knee injury.  The second is that the panel failed to provide adequate reasons for decision.  I will deal with both grounds together.

1. Omni Care contends that the only reasonable conclusion available to the panel was that Ms Koumouris’s major depressive disorder was attributable not to her compensable knee injury, but to the non-compensable hostility and abuse of her husband.  In that regard, Omni Care places reliance upon the following passages from the reasons for opinion of the panel:

… she said that most of her distress during this period was related to her husband pressuring her to get back to work and to earn money.  She stated that with the passage of time his level of hostility escalated, resulting in her developing a significant depressive syndrome by mid 2012.

The worker said that her depressive state deteriorated because her husband continued to pressure and harass her to earn money, and this culminated in her being referred to a psychiatrist who organised admission into a private psychiatric hospital in April 2013 for five weeks.

… the ongoing lack of support from her husband resulted in her taking an overdose of hypnotic medications on 03 August 2014 …

… the subsequent depressive state detailed above clearly followed the incident in large part due to her inability to work resulting in her husband’s amplified abuse.

On the basis of these paragraphs and others, Omni Care submits that Mr Koumouris’s hostility and abuse towards his wife constituted a novus actus interveniens that broke the chain of causation between the knee injury and the major depressive disorder.

1. The legal principles applicable to this kind of problem were not in dispute.  The question is whether Ms Koumouris’s incapacity for suitable work resulted from her work-related injuries ‘by a chain of legal causation unbroken by any novus actus interveniens’.[1]  As explained by Smith J in Haber v Walker,[2] the legal chain of causation may be broken by intervening events that constitute either:

(a)human action that is properly to be regarded as voluntary, or

(b)a causally independent event the conjunction of which with the wrongful act or omission is by ordinary standards so extremely unlikely as to be termed a coincidence …[3]

[1]Bushby v Morris [1980] 1 NSWLR 81, 87 [19] (Privy Council).

[2][1963] VR 339.

[3]Ibid 358.

1. Applying these principles to the present case, Omni Care contends that Ms Koumouris’s major depressive disorder has not resulted from her work-related knee injury but the work-unrelated hostility and abuse of her husband.  It was submitted that the panel erred in law in failing to take these principles into account when expressing the opinion that it did.

1. It must be admitted that there is some force in these contentions.  Passages of the panel’s reasons for opinion – including those to which I have referred – suggest that the panel may have concluded that Ms Koumouris’s lack of capacity for suitable work was due to her husband’s hostility and abuse.

1. Counsel for Ms Koumouris sought to defend those passages by submitting that the husband’s hostility and abuse was an ordinary and foreseeable incident of a marital relationship under stress because one partner was not earning income due to a work-related injury.  It was submitted that Ms Koumouris’s major depressive disorder was work-related because the hostility and abuse of her husband was caused by the consequences for the family of her work-related knee injury.

1. I do not accept this submission.  The hostility and abuse directed by Mr Koumouris towards his wife, as implicitly found by the panel, was much greater than that which might be due to ordinary marital stress caused by one partner to a marriage ceasing employment.  As reported by Ms Koumouris and accepted by the panel, the hostility and abuse had been and was an ongoing feature of Mr Koumouris’s behaviour as an individual.  It could not be regarded as caused by his wife’s knee injury and incapacity for suitable work.  It was not something for which the employer was in any way responsible.  If the panel had concluded that Ms Koumouris’ major depressive disorder was work-related simply because the hostility and abuse of her husband was caused by the consequences for the family of her work-related knee injury, I think the novus actus interveniens principle would have been directly applicable to break the chain of causation between the knee injury and the major depressive disorder.

1. I do not think the panel so reasoned.  As the reasons for opinion reveal, the panel was mindful of the history of the prior conflict between the parties to the marriage.  For example, in relation to the psychiatric assessment conducted by the panel of Ms Koumouris, the panel said:

The worker said that whilst her husband had been emotionally and at times physically abusive towards her for many years, this had never resulted in her requiring professional psychological assistance other than marital counselling on one occasion approximately 12 years ago, and attendance with a psychiatrist for marital counselling approximately 10 years ago.

In a later passage, the panel said:

With regard to her past psychiatric history, as detailed above, she stated that she had been chronically stressed in her second marriage due to both emotional and (prior to the children growing up somewhat) physical abuse by her controlling husband, but that she had not needed to attend for individual psychological care during the years prior to the incident.  She said that in the latter years prior to the incident, the relationship was a little more settled than in earlier years because she was earning a regular income, with which her husband was satisfied.  As such, the Panel was satisfied that her emotional state was not significantly compromised in the period immediately prior to the incident, and that the subsequent depressive state detailed above clearly followed the incident in large part due to her inability to work resulting in her husband’s amplified abuse.

In its conclusion, the panel stated:

The Panel concluded that the worker is currently suffering from a Major Depressive Disorder, mostly attributable to the claimed injury, but partially attributable to other non-work related factors.

The Panel took into account the nature of the worker’s pre-injury employment duties as a community support worker and the nature, severity and limitations due to the worker’s mild right knee dysfunction and Major Depressive Disorder and concluded that the worker is not capable of performing her pre-injury employment duties.

1. On my reading of the panel’s reasons for opinion, it found that Ms Koumouris and her husband had a fraught marriage in which she was subjected to hostility and abuse by him.  She coped with the vicissitudes of her marriage reasonably well and, despite the hostility and abuse, had been able to perform suitable work.  When the injury happened, she was not able to cope with her husband’s hostility and abuse.  Although the hostility and abuse became ‘amplified’ (to use the panel’s word), it had been a feature of the husband’s behaviour towards Ms Koumouris for many years.  The major depressive disorder was caused by the knee injury because that injury made Ms Koumouris unable to cope with her husband’s continued behaviour.  So regarded, the behaviour of Ms Koumouris’s husband was not a voluntary or independent cause of her major depressive disorder.  It was a feature of the social setting in which Ms Koumouris lived and with which she coped reasonably well prior to the knee injury.  After the knee injury, she could not do so.  I think the panel so reasoned and it was open to them so to do.

1. On other facts, this reasoning might not have been open.  For example, if there had been no prior behaviour of hostility and abuse on the part of Mr Koumouris or Ms Koumouris had not been able to cope with it, the cause of her incapacity for suitable work would have been the new hostility and abuse or the continuation of her inability to cope with it.  The hostility and abuse might have been present historically but became substantially greater such as to be different in nature and degree after the knee injury.  That, too, might have constituted an independent cause but the panel did not so find and it was not bound to do so.  In my view, the panel was cognisant of these issues and took them into account when finding the facts and expressing the opinions that it did.  I see that particularly in the way that it constructed a ‘before and after’ injury psychiatric and social profile of Ms Koumouris and considered whether her major depressive disorder was work-related in that context.  I also see this in the panel’s carefully expressed conclusion that Ms Koumouris’s major depressive disorder was ‘mostly attributable to the claimed injury, but partially attributable to other non-work related factors’.

1. In my view, the panel found facts and expressed opinions that took into account whether Ms Koumouris’s psychiatric condition was caused by her work-related injury or, rather, was independently caused by her husband’s work-unrelated hostility and abuse.  The findings that it made and the opinions that it expressed were legally available.  There was no inconsistency between the findings and the opinions.  The reasons for decision of the panel reveal no error of law and fully disclose the path of reasoning that was followed.  The application for judicial review will therefore be dismissed.